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2 /WATCHING YOUTH IN COURT (IWk 44ek II II _1 KE 9445 M An Invitation to Community Involvement Under the Young Offenders Act/

3 Credits Authors Rae)acdonald, Ph.D., writer Nicholas Bala, LI.M., legal advisor French translation Marcel Pronovost Claude Auger Illustrations Mary Taylor Composition Lasertype, Inc. Printing Bradda Printing Published by the Church Council on Justice and Corrections vvith the assistance of the Ministry of the Solicitor General of Canada March, 1987 Church Council on Justice and Corrections 507 Bank Street Ottawa, Ontario K2P 1Z5 (613)

4 Table of Contents / ForeWord The Question The Goal of This Manual The Young Offenders Act: Its Principles The Courtroom and Its People What Happens in Court? What Happens Outside Court? Ricky T., A Sample Case The Judge's Options (Dispositions) How Should You Begin? What To Look For What Next? Additional Resources Courtwatching Forms Flow Chart e e e e e,...,..,e'e e r,...-,4-,, e ei 4' ed.',,eee,. 'e.ç., \'9,z, e e).., t, es. 3 e.,.. &..%. k (» ' e e, e. e e' 4 k LIBRARY LIINISFTW OF THE soociron GENERAL OF CAWADA JAN 14 J,19? EpanyrkiÈouE tvumistène DU SOLLICIUMH GEM iteal DU CANADA OTTAve/i. ONTAPIO CANAÉ/A KIA OR3

5 A word about the gender of our pronouns. While preparing this manual, we considered different methods of acknowledging its relevance for both males and females. In the end we decided against the `he/she' formula because of its awkwardness. Instead we have varied the pronouns of our characters. Judges and youths, for example, alternately are referred to as 'he' or 'she'. When a particular story is told, pronoun gender remains consistent. We hope you find the result both readable and inclusive. 2

6 FOREWORD Justice is about people those who are hurt and those who do harm to others. As justice becomes a system it has a tendency to become self serving as does any monopoly. Lest Christians smugly pull moral rank, let me point out that churches have too often become self-serving systems. Systems do not care about people. There are, however, many individuals within both churches and the criminal justice system who do care. The present system is too impersonal to allow people to show that they care. Large case loads often make it impossible for police, lawyers and prison staff to demonstrate their concern. Besides, they are usually subjected to only the darkest sides of people, which leads to cynicism. "What am I to do with this case?" is frequently the pathetic lament of a judge in the privacy of his chambers. It is a resounding lament echoed by probation officers, police, and social workers across the country because justice problems are people problems, and people problems are usually deep seated, complex and profound. The Young Offenders Act was brought in to help deal with offences committed by young people. An Act by itself can do nothing. It can only provide a framework, an open door for people to get involved and do something to solve their problems. This manual tries to provide an understanding of the framework of the Y.O.A. and the system in which it functions. It does more. Just as important as the explanations, are the anecdotes about people... But why focus on youth? I am reminded of a time when I was visiting Leclerc Penitentiary, a medium security adult institution near Montreal. A theologian from the University of Montreal had come in to speak to prisoners. He told the story of Jesus and the children. A group of children were disturbing some adults who were intent on listening to Jesus. The adults tried to send they away but Jesus said "Let the children come to me." They came close to Him and He touched them. "Those children were delinquents," was the conclusion of the theologian. In the late 1980's they would have been prime candidates to become young offenders. The example of Jesus was to get close enough to "problem young people" to touch them. There are many in society who are applying pressure to have young offenders removed from the community. To try to get close enough to understand means to attempt to swim upstream. Watching Youth in Court provides an opportunity to take the first plunge. What happens after that is up to you. Rae Macdonald started this project by actually doing some court vatching. She wrote the first draft based on this experience. Nick Bala, Law Professor at Queen's University, then expanded the text out of his legal expertise. Kathy Kulisek of the Young Offenders Directorate, Ministry of the Solicitor General Secretariat offered helpful suggestions about the organization of the material. Others contributed personal stories. Rae then continued the revisions with Nick finetuning for legal accuracy. Finally the text was reviewed by people from across the country. Throughout the process, Susan Christie and Michel Vallée, with whom we initiated discussions at the Y.O.A. Unit of the Ministry of the Solicitor General, and Kathy Kulisek have provided helpful support. Vern Redekop Program Coordinator (Communications) Church Council on Justice and Corrections 3

7 THE QUESTION Young people and the law. How do you bring the two together in a way that respects both? Society expects and deserves protection from young people who break our laws. At the same time our youth share the rights of adults to fundamental justice of law and fair and equal treatment as guaranteed in the Canadian Charter of Rights and Freedoms. We recognize that adolescence is a period of development and change, a difficult, confusing time for many young people. When a boy or girl stands before a Judge, we understand that a troubled family situation, peer pressures and a multitude of frustrations and anger may lie behind the scene. Most of us hope that, when young people do find themselves at odds with the law, our institutions can set them on a new path and prevent them from being involved in crime again. We hope for constructive correction. Stark punishment is not what we have in mind. She was organizing youth programs at the Native Friendship Center, but It was clear from the way she talked that she had been through the system. I asked her about an open custody group home for our community. She replied that, no matter how good the program might be and no matter how much the young people progressed while at the "home", unless something was done to come to terms with the original problem, they would quickly revert back to their original behaviour. Description of a conversation with a Manitoba woman who works with youth. Can the legal process take the young person's needs into account and protect society at the same time? How balanced an instrument can the youth justice system be? 4

8 THE GOAL OF THIS MANUAL Think of the jurisdiction of the youth justice system as a busy town with many streets running through it and many people busy about their jobs on these streets. These people are all those who are involved in the operation of the system: young people who are charged with breaking the law, their parents, victims, police officers, lawyers, court workers, social workers, probation officers, witnesses, etc. At the center of this town is a traffic circle into which most of the streets lead. This traffic circle is the courtroom, and the figure who controls the red lights, green lights and amber cautions is the Judge. The standards that guide the Judge as he directs traffic are embodied in the Young Offenders Act (Y.O.A.). Now think of this booklet as a simple map that can give you an ide,a of the main streets in town and guide you through the traffic circle. This booklet must give a picture of the whole town because so much of the reality of the Young Offenders Act happens outside the courtroom and before and after a young person stands in front of a Judge. It is in court, however, that many strands of the Young Offenders Act merge. If you make a commitment to monitoring the Y.O.A., your attention may cause those who work in the youth justice system to perform their duties more conscientiously. In addition, you will become sensitive to the way the Act works for real people. The ultimate test of any law is how it effects people; we cannot afford to take it for granted. 5

9 THE YOUNG OFFENDERS ACT: ITS PRINCIPLES Just as there are rules that govern traffic, so there are rules that govern Youth Court; these rules and the spirit that they express are embodied in the Young Offenders Act. The Y.O.A. deals with young people aged 12 to 17 (inclusive) who violate federal laws such as the Criminal Code, the Narcotic Control Act, and the Food and Drug Act. While the Act applies throughout Canada, responsibility for its implementation rests primarily with the different provincial governments who set up Youth Courts and appoint Youth Judges. Violations of provincial law, such as the highway traffic code or liquor laws, are dealt with according to provincial policies. In some places, provincial offences are handled in the same way as federal offences in Youth Court. In other places, youths charged with these offences may be dealt with in the same manner as adults. The Young Offenders Act came into force on April 2, 1984, and replaced the Juvenile Delinquents Act which was first enacted in The change was the result of 20 years of research, debate and consultation a long forging process. Whereas the Juvenile Delinquents Act had focused primarily on the needs of the child, the Y.O.A. is more clearly criminal law and recognizes the need to protect society. The Young Offenders Act articulates the following principles: Young people are to be held accountable for the illegal acts they commit, although they vvill not be held accountable in the same way as adults are. Society has the right to be protected from illegal behaviour. 6

10 Young offenders require supervision, discipline and control. They also have special needs because they are dependents at varying levels of development and maturity. They also, therefore, require guidance and assistance. Those responsible for youth justice should consider using alternatives to the formal court process, or taking no formal action, as long as such a solution is consistent with the protection of society. The Act recognizes the responsibility of parents for the care and supervision of their children. Young offenders should only be removed from their families when continued parental supervision is inappropriate. Young people are to have all the legal rights and freedoms afforded adults, including those guaranteed in the Charter of Rights and Freedoms. In some situations, young persons require special guarantees and mechanisms to protect their rights. Here are some of the rights included in the Y.O.A.: - a right to participate in deliberations which effect them. - a right to be informed of all their rights and freedoms. - a right to the least interference with their freedom which is consistent with the protection of society, their own needs and their families' interests. - the right to a court-appointed lawyer. - special protection at the time of arrest. If our laws are to be a reflection of our attitudes, they must be complex enough to reflect a complex society. As you first approach the Young Offenders Act, its details may slow you down. Do not be discouraged. Remember that laws are put into practice on a daily basis by real people in real situations. Remember also that most of the people whom the Act affects will be no better informed, perhaps less so, than you are. If the Y.O.A. is to fulfill its potential as a humane and balanced law, concerned citizens and communities must first understand it, then monitor its practice and, finally, respond to its needs by communicating with legislators and lobby groups and by establishing community programs that will give reality to the promise of the Act. 7

11 THE COURTROOM AND ITS PEOPLE To understand the courtroom process, you will need to recognize the key figures in it. Youth Court Judge For centuries, the image of a scale has stood for impartiality. It is the job of the Judge to administer the law without bias. She must hear evidence. She may ask for more information if she thinks it necessary. Finally, she makes a decision. The case is heard by the Judge alone; there is no jury in Youth Court. The Defence Counsel This is the lawyer who represents the interests of the young person in court. Every young person who comes to court has the right to legal counsel. If the youth cannot afford a lawyer but wants to be represented, the court will order that a lawyer paid by the government represents the youth. Such lawyers may be in private practice or from a legal aid clinic. In some places there is a lawyer in attendance at the court to assist all youths who have no other lawyers; such a lawyer is called a Duty Counsel. Duty Counsel will often have only a few minutes to interview a young person and so will be reluctant to be involved in a complex case. It is the job of Defence Counsel, whether court-appointed or privately engaged, to explain the legal issues of the case to the young person, to make sure the youth understands his rights. Defence Counsel should make himself aware of the case against the youth and be prepared to respond to it. Prosecutor/Crown Attorney This is the person who presents the case against the youth. Usually this person is a lawyer, but in some localities a police officer carries out this role in Youth Court. If the youth pleads not guilty, the 'burden of proof rests with prosecutor. The Crown must prove its case "beyond a reasonable doubt". Witness A witness is anyone who, in the opinion of either Defence Counsel or the prosecution, has relevant information in regard to the case. Either side may call witnesses, though the young person charged with the offence is not obliged to produce evidence. Witnesses usually give evidence under oath, or under a solemn affirmation. There are special rules regarding young witnesses. Youth Worker/Probation Officer Different terms for this person are used in different places. "Probation Officer" is probably the most common and that is the one you will find used in this booldet. If the young offender is convicted of an offence, all or part of his sentence may include probation. When on probation, a person remains in his home, often under the supervision of a Probation Officer and usually subject to specified conditions. 8

12 Probation Officers are also responsible for preparing reports for the Youth Courts to assist in making decisions about disposition (sentencing), disposition review or transfer to the adult court system. Such a report is prepared only when a Judge orders it, either on his own initiative, or on the request of one of the parties. The Probation Officer will prepare such a report only after he has interviewed the family as well as any social workers, teachers or others involved in the youth's life. Such a report will be presented to the Judge who will circulate it to the Crown and Defence Counsel before being used in court. Social Worker Social workers are sometimes asked to appear in court to provide information on the background of youths. This is particularly true if the young person is in the care of a child welfare agency (Children's Aid Society, Department of Human Services, etc.). The Social Worker may testify about the young person's schooling, home life, character, background, and present life situation. The Social Worker is asked to provide this information as part of the Youth Court Judge's effort to gain a fuller picture of the young person. Such evidence is usually only relevant in respect to sentencing or pre-trial detention. The Clerk The Court Reporter This person's duties are similar to those of a secretary at a meeting, recording the proceedings of each hearing. In some places, there is no court reporter and proceedings are tape recorded. There are restrictions on who can have access to records relating to youths who are dealt with under the Y.O.A. This is to protect the privacy of young persons and spare them and their families needless embarrassment. In the event that a young offender remains free of criminal behaviour, no one is to be able to use the records. Further, in recognition of the principle of limited accountability, the Y.O.A. has special provisions requiring the eventual destruction of records relating to young offenders when certain conditions are met. The Victim The person or persons who have been harmed by a young person's offence are often not present in the courtroom. In dealing with the offender and the offence, society should not neglect the victim for whom the consequences of the offence (both concrete and emotional) may continue long after the court case is over. The Y.O.A. has special provisions to ensure that a court learns the consequences of an offence for a victim and allows a Judge to arrange compensation. The Judge may ask for information on the victim in the pre-disposition (sentencing) report. The Clerk is an officer of the court. She calls the court to order, announces the case before the court, swears in witnesses, keeps track of court documents and enters the decisions of the Judge on official records. 9

13 " I VE GOT TO LOOK TOUGH, BUT INSIDE I D ONT FEEL THAT WAY." 1 0

14 The Young Person The young person must appear in court to face the charges against him. The Y.O.A. recognizes that young people are at a special point in life, perhaps a turning point that will permanently influence the adults that they will become. Their rights are guaranteed by the Charter of Rights and Freedoms. The individual most at risk for delinquent behaviour seems to be the one who comes from a poor family, lives in an area prone to environmental pollution, eats a nutritionally poor diet and has social and academic problems at school. Carol M. Crealock, Ph.D. "Learning Disabilities and the Young Offender: Exploration of Causes of the Relationship" Young people who appear in court often act "cool" for the benefit of any peers in the gallery. When I talk to them afterwards they are usually afraid, shaking and close to tears. The comment of an Alberta Probation Officer The Parents Under the Y.O.A., parents must be informed of charges against their child and have a right to be in court and to be fully informed of the youth's legal situation. As well as having the right to be in court, parents are usually expected, and on occasion can be compelled, to attend court. Though parents are not held legally responsible for their children's offences, they may be able to speak in some situations, for example when the Judge is deciding on his disposition (sentence). 1 have a third cousin who raped and then killed a teenage girl. I have never met the boy, but I have talked to his parents on a number of occasions. They are good people. Their son's trouble has left its mark on them they speak quietly, are probably more sensitive to feelings than most of us, and tears sometimes come to the woman's eyes when she talks. I used to picture the parents of kids who broke the law as indifferent. Now that this has happened, I know that picture isn't always true, maybe Isn't even often true. This couple carries the double burden of terrible sorrow for the dead girl and for their son. You can feel It about them end see it in their faces. Observations of a relative of a young offender. The Courtroom The arrangement of most courtrooms is similar. The Judge will be center front, often seated behind a raised desk. The Clerk and Reporter will also be at the front of the room, often just beside the Judge. In the middle of the room, the prosecutor will sit at one table to the Judge's left, while the young person and his counsel will sit at a different table to the Judge's right. Parents may sit beside their child or behind her. Seats for observers will be towards the back of the room. A witness stand from which witnesses offer testimony will be at the front of the court, facing the room and within good earshot of the Judge. 11

15 WHAT HAPPENS IN COURT? There are 4 basic steps in procedure in Youth Court: (1) charge; (2) plea; (3) trial; (4) disposition (sentencing). Outside the courtroom, an officer announces the case about to be heard. This call gives all concerned a chance to enter the courtroom and take their places. A session may deal with several cases, one after another. At the start of the session the Clerk begins Youth Court proceedings by asking everyone present to stand as the Youth Court Judge enters and takes her seat. He then formally announces the matter before the court; he usually identifies the young person and the two counsels. The Judge or Clerk reads aloud the charge which the Crown is bringing against the young person. The youth may enter plea ("guilty" or "not guilty") immediately or may ask for an adjournment of plea. (a) If the young person pleads "guilty", sentencing (disposition) may proceed at once (after both sides have had a chance to make recommendations to the Judge) or there may be an adjournment of plea. (b) If the youth pleads "not guilty", a date is set for trial. Most of us are familiar with the basic principles of the trial process: 1. The onus is on the Crown to prove its case beyond a reasonable doubt. 2. Facts are only to be proven through testimony of witnesses, generally testifying only about matters they have seen or heard themselves. 3. The laws of evidence apply. A particularly contentious issue which sometimes arises is whether a statement of a young person to a police officer (a confession) will be admissible (received as evidence in the trial). Special rules govern police questioning of young persons; these rules are designed to ensure that young persons understand all of their legal rights. An important right is the right to have a parent or lawyer present during police questioning, though the youth may waive (give up) this right. If the police fail to follow the special rules, the statement of the youth to the police will be ruled "inadmissible". The issue of the admissibility of the statement is decided at a voir dire (a trial within a trial). 4. The Crown calls its witnesses first. Each witness is "examined in chief" (asked questions by the lawyer who called him). The other lawyer may then "cross-examine"; in cross-examination there is a broader scope for asking questions. The young person is not obliged to testify or call witnesses, though he may choose to do so. After all the evidence is in, the lawyer for each side makes a submission, reviewing the evidence and the law, and asks for acquittal (if he is Defence) or conviction (if she is the Prosecutor). 12

16 What may come as a surprise to a new courtwatcher is that much of the business that occupies Youth Court is not trials. Far more than fifty percent of the young people who are charged in court plead guilty. Two adolescents dropped into the community centre for a visit. Both had made many trips to court. it was clear that before expulsion from school they had projected bravery and toughness. As they told their stories it was important for them to admit candidly to me that behind the image was fear and trembling even though encounters with the legal system were almost routine. Told by a former administrator of a community centre. Often a case does not proceed in a simple straight-forward manner. There are delays (adjournments) for various reasons. Here are some of the variations of the court process. 1. Adjournment to give the young person time to obtain counsel If a young person has no lawyer and wants to be represented, the Judge will refer the youth to Legal Aid or direct that counsel be provided by the provincial government. It usually takes a couple of weeks to complete this process and arrange an initial interview with a lawyer. 2. Adjournment with hearing about pre-trial detention (bail-hearing) If the case is serious and the police believe the youth should be detained after arrest, a Judge must decide whether a youth will be in custody pending trial, or released in the care of her parents or some other adult, perhaps subject to some conditions, or released without conditions. 3. Adjournment for counsel to prepare case If a young person pleads not guilty, only rarely will the trial begin immediately. Either counsel may request an adjournment in order to have more time to prepare the case or arrange to have witnesses attend. Whether or not to grant an adjournment is up to the Judge who will invariably grant it if it is the first such request. When an adjournment is granted, a date for the trial is set. 4. Adjournment to Hear Application for Transfer to Adult Court 5. Mixed pleas, more adjournments Sometimes, if a young person is faced with several charges, the youth will plead guilty to some and not to others. Counsel for the Defense may request a later trial date for the charges to which the youth pleads not guilty. The Judge may also want a later disposition date for the charges to which the young offender pleads guilty. In such an example the Judge must set two new dates to deal with the case. 13

17 6. Changed pleas, withdrawn charges Sometimes, by the time a trial date arrives, a youth who has pleaded not guilty will decide to change his plea to guilty or the Crown Counsel will have recognized a weakness in the prosecution's case and decided to withdraw the charge or present no evidence. As you see, the law can follow a number of roads. In order for the Judge to accept a plea of guilty, a decision must be made on whether facts support the charge. In this situation, the Crown reads the essential facts of the case to the Judge; the youth is asked whether these facts are correct. If the youth does not agree vvith the facts as presented by the Crown Counsel, a trial is held. Usually the youth agrees, and the Judge makes a finding of guilt after a guilty plea. The Judge may decide on a disposition (sentence) immediately after making a finding of guilt. Often, however, the Judge feels the need for more information before deciding on a disposition that will suit the offence and the offender and protect society; often the desired information includes the social background of the youth. At such times, the Judge will ask that a pre-disposition report be compiled and will set a future date for hearing this report and deciding on a disposition. This is often where the Probation Officer enters the process. Occasionally a psychiatric, medical or psychological report is ordered to assist the Judge in rendering an appropriate disposition. Either side may call witnesses to give additional evidence at the disposition, and, before the Judge decides, the lawyer on each side makes a recommendation. 14

18 15

19 WHAT HAPPENS OUTSIDE COURT? If we return to our comparison of the jurisdiction of the Young Offenders Act as a busy town with the courtroom serving as a traffic circle in the middle, you will understand the importance of being somewhat familiar with the roads that lead into the traffic circle. Alternative measures Some of these streets never actually lead to court. Remember that one of the principles of the Y.O.A. is that "alternative measures" to the formal court process should be considered for a young offender as long as such a solution is consistent with the protection of society. Such alternatives to the court process could involve making restitution, some specific community service, writing an essay and many more. Alternative measures can only apply, however, if the youth "accepts responsibility" for an offence and agrees to participate. The alternative measures process is relatively informal, and avoids an appearance in court or a criminal record. Care must be taken, however, that a youth does not "accept responsibility" for something she did not do, in order to avoid Court. Parents, social workers, police and lawyers must be vigilant. An example of a young offender for whom alternative measures might be appropriate could be a fourteen-year-old with no prior record who has just committed a relatively minor first offence, shoplifting for example. Whether or not alternative measures are considered for such a youth will depend on several factors. Is there an alternative measures program available in the community where the youth resides? Do the police and the Crown agree that the youth should have alternative measures? Does the young person also agree? When considering youths of other ages or those committing other offences, different criteria might apply. For the Y.O.A. to realize its full potential, communities must respond to the needs of the Act. Constructive alternative measures are one of those needs. Police and youth One of the roads to the courtroom is taken by a police officer when he deals with a youth and writes his report. At this early stage, as in all later stages, the rights of the young person are to be protected. Upon arrest of a youth, the police officer must explain the youth's rights to him in words appropriate to his age and 16

20 understanding. This includes the right to remain silent, and to have a parent or lawyer present if the police question the youth. Parents must always be promptly informed about the arrest of their child. Usually, when the matter comes to court, the officer involved will be called to testify. In some instances, for example, when a youth pleads guilty, the officer will not have to appear in person, but his report will be read by the Counsel for the Crown. John was taken to the police station for questioning. The officer "read him his rights", and John said he understood. John's lawyer, who had arrived, asked John what certain words meant, lt was clear that he had no understanding of the terms. This incident illustrates the importance of having a lawyer or alert adult present. Told by a Nova Scotian lawyer. Defence Counsel and young person Clearly, the roads of the young defendant and Defence Counsel must meet before court if the youth is to understand her legal position and if the Counsel for Defence is to prepare to represent the youth. It is usually only after consulting with counsel that a young person decides whether to plead guilty of not guilty. Defence meets Crown pre-court negotiation The roads of the Defence Counsel and the Counsel for the Crown also meet before they come into court. The nature of the Crown's case against the youth will usually be made available to the Defence Counsel. A fact of legal life for both adults and youths, and perhaps the chief reason why Youth Court doesn't handle as many full-fledged trials as you might expect, is "pleabargaining" or pre-court negotiation. This is the process whereby the two lawyers discuss the youth's situation and agree on a compromise that satisfies both. This will usually involve a guilty plea on one or more charges, with the Crown perhaps dropping some other charges. An important part of any plea bargain is a joint recommendation as to disposition (sentence), though ultimately it is for the Judge to decide whether the recommendation is accepted. Of course, the youth must understand and agree to any plea bargain. Defence Counsel must explain in advance to the youth that he (Defence) is going to ask the Crown about the evidence and that he will try to get one or more charges dropped. Defence must explain that pleading "guilty" to an offence the youth admits may be used to persuade the Crown to drop some other charges. The youth should, however, be reminded of her right to trial. 17

21 RICKY T., A SAMPLE CASE What follows in this section Is a description based on an actual case observed as we were preparing this booklet, though it took several weeks to find a case that Involved more than guilty pleas or pre-dis position hearings. Our observer satin court, met Ricky T. and talked to both Ricky's lawyer and the Crown Counsel. Despite these advantages, the observer came away with a number of confusions and misconceptions about what had gone on; some of these misconceptions were based on the observer's conversations with one of the lawyers involved. One must wonder, therefore, how much Ricky understood about the details of his legal situation. An example of pre-court negotiation occurs in the case of Ricky T. who comes into court charged with Break and Enter (illegally entering another person's residence with the intent to steal something) and with Theft. Last year Ricky was convicted of Intent to Break and Enter, and Possession of Stolen Property. For these earlier offences he had been fined fifty dollars, served 26 days in custody and been placed on one year probation. As he stands in court this time, he is a ward of the child welfare authority and living in a group home. Because the Crown Counsel had said I was interested in monitoring the Y.O.A., Ricky's lawyer asked if I would like to talk with her client. I was taken slightly by surprise, but said I would. Ricky had been introduced and shook my hand before I fully realized that he was the youth I was about to see in court. I was surprised. He had a pleasant face and looked older than his age. Frankly, I don't think I had expected to shake hands with him - not that I minded - simply the handshake is a mark of social cordiality I didn't expect him to extend and had not thought about offering to him. In my mind I had set him apart. Thoughts of the courtwatcher observing Ricky's case. Pre-court negotiation - reduced charge With the assistance of legal aid, Ricky has retained a lawyer prior to trial. Ricky has met his lawyer before the case comes to court and his lawyer meets with the Counsel for the Crown. After the two lawyers talk, Ricky's lawyer tells him that the Crol,vn will drop the Theft charges if he pleads guilty to the charge of Break and Enter. The Crown will accept this plea if Ricky will agree to spend three months in a wilderness camp training program for troubled youths. Ricky agrees to try this and pleads guilty. The Crown and Defence Counsel both recommend this disposition to the court, and the pre-disposition report prepared by the Probation Officer also supports it. After listening to these recommendations, the Judge agrees and sentences Ricky to three months open custody. Ricky will spend the next three months at the wilderness camp. 18

22 Because we were all about to go into court, Ricky's lawyer talked quickly. She sketched the details of Ricky's case and the agreement she and the Crown had just reached on Ricky's behalf. She said Ricky was looking forward to the wilderness camp. I asked Ricky if he had understood ail the details of his case. He shrugged slightly and said yes, but he wasn't really focusing on my question. He kept looking from his lawyer to the door of the courtroom. Thoughts of the courtwatcher. VVhat the case of Ricky T. looks like in court Unless out-of-court negotiations are understood, the details of the courtroom process may confuse a courtvvatcher. In Ricky's case, the Judge announces the charges of Break and Enter, and Theft and asks Ricky how he pleads. Ricky pleads not guilty to Theft, but guilty to the charge of Break and Enter. The Crown Counsel then rises and tells the Judge that "The Crown presents no evidence, Your Honour." Then the Defence will ask for dismissal of the charge. If a charge is dismissed because the prosecutor presents no evidence, it cannot be relaid. The Crown Counsel reads the police report. Defence Counsel asks certain questions. Does the Crown acknowledge that there were others involved? Yes. Does the Crown agree that Ricky was in possession of only a portion of the property that was stolen, that Ricky had about one hundred dollars? Yes. The Judge listens, and, after being satisfied that the facts support the charge, makes a finding of guilty. The Judge then adjourns to allow time for a predisposition report. After hearing the report and listening to the recommendations, the Judge imposes a sentence of three months open custody. Outside court, Ricky's lawyer advises him to do his best in the camp program. Ricky leaves the court with his Probation Officer who will supervise his progress during the next three months. His lawyer left Ricky and me alone for a few minutes. I felt slightly awkward, not unlike the feeling I've had at a sickbed when I've trled to think of something cheerful to say and am gladly aware of my own good health. I asked Ricky about where he lived and his school. He said the group home was fine and he found school boring, so was taking correspondence courses. He was shy about some details; he almost used the word 'goal', then avoided it. Because 1 am a woman, he assumed an air of bravado that reminded me forcefully of my own eight-year old son when he's trying to 'handle the world'. In the boy of fifteen, who looked eighteen, 1 suddenly saw the child of eight. Thoughts of the courtwatcher. 19

23 The spirit behind Youth Court negotiations In Ricky's case, his lawyer and the Crown have made a compromise that they believe is in Ricky's best interest while at the same time protecting society. The Y.O.A. acknowledges that young offenders are dependents at varying levels of development and maturity. They need "guidance and assistance". Of course, guidance and assistance do not preclude Ricky's legal rights - particularly his right to be fully informed of his rights and to be included in deliberations that effect him. Ricky's case is just one example of the effect of pre-court negotiations on the outcome of a Youth Court case. Tom had recently completed probation when he was charged with break and enter. The Crown would be satisfied with three months probation if he pleaded guilty (he admitted that he was). His lawyer felt that was fair, but asked Tom, "What do you think? How should the judge sentence you? What would keep you out of trouble?" Tom did not hesitate a moment. "Longer probation," he saki. "I never get in trouble when I'm on probation. If the judge gives me a year, I'll stay clean, and after that, I'll be O.K." His lawyer changed the recommendation to the longer probation much to the Crown's surprise. Tom stayed on the right side of the law from then on. Told by a Nova Scotian lawyer. 20

24 THE JUDGE'S OPTIONS (Dispositions) Just as different roads lead into the courtroom, so different roads lead away from it. If the young person is acquitted, she returns to her life and all records of the matter must be destroyed. If she is found guilty of any charge, the Judge's disposition will decide which road he takes next. If a young person is found guilty, a Youth Court Judge may order the following dispositions. Whichever disposition a Judge orders will determine the road the youth will take after leaving the court. Absolute Discharge This disposition applies when the Judge finds a young person guilty, but decides the youth should have another chance and that nothing more should happen. Fine up to $1,000 Sometimes, if a youth can't pay the ordered fine, it may be paid off if the youth earns credits for work in a program; for this to happen, of course, a "fine option" work program must be available in the community where the youth resides. Compensation or Restitution This disposition involves the return of property or payment of money to the victim of the offence. A Judge considering this disposition must take into account the present and future potential of the offender to pay. Personal Service Order The Judge orders the offender to spend a specific number of hours working for the victim of the offence. The work must be performed within the year and cannot be more than 240 hours. A Judge must take into account the views of the victim before ordering this disposition. Community Service Order The Judge may order the offender to do no more than 240 hours of work for a social or community agency such as a church, nursing home or city. The work must be carried out within the year. If different community service options are available, a young offender may express a preference through his lawyer. Once again, this option is only possible if agencies in the youth's community are willing to have young offenders do work for them. The town Is in the process of getting ready for Its first Community Orders. The offending youths will be asked to do Jobs around the town such as cleaning the town equipment shop and doing the spring maintenance work on the town swimming pool. The Mayor has committed himself to spending time on the program and to supervising the work. From an article on Community Service Orders. Probation Probation allows the young offender to stay in the community under the supervision of a Probation Officer. Usually young offenders on probation continue to reside with their families. The Judge may add conditions to the probation order such as attendance at school or regular appointments with a therapist. The Judge must specify the probation period which cannot exceed two years. Probation is a flexible disposition; under certain circumstances the conditions can be modified if the Judge sees the need. 21

25 (---7. YOUR PARENTS HAVE WORKED VERY HARD -rn onik v- \/ni i 1 i TO BRING YOU UP AND v PROVIDE A GOOD HOME FOR YOU. AND LOOK. AT WHAT YOU'VE DONE I MAY HAVE DONE VVRONG, BUT I HAVE SUFFERED FROM ABUSE AND PEER PRE55UI2E. AT MY TIME OF CRIS I TURNED TO DRUGS AND ALCONOL TO ESCAPE... 22

26 Treatment Order In addition to, or as alternatives to, a predisposition report, a Judge may ask for a medical or psychological report. If such a report recommends that the young person undergo treatment in a residential facility such as a psychiatric hospital, the young person may be placed in a hospital or other appropriate institution. The young person and usually her parents must consent to such a disposition. The consent of the treatment facility is also required. Custody Order Under the Y.O.A., committal to custody is the most severe disposition which can be imposed. Custody is imposed only if "necessary for the protection of society", having regard to the seriousness of the offence and the needs of the young person. Custody may be imposed for up to three years if the offence is a serious one, but most sentences in Youth Court are shorter. A young offender may be sentenced to 'open' or 'secure' custody. Open custody includes some group homes, forest camps, etc., - places where security is not too strict, but where there are rules. Secure custody is more secure than 'open custody'. Types of 'secure custody' vary considerably from not too secure to very secure, like a prison. Reformatories, training schools and other facilities are considered 'secure custody.' The law does not ordinarily permit young offenders to be confined in the same place as adult offenders, though exceptions are sometimes made as in the case of those over eighteen or those transferred to adult court. The whole family was drunk. The father was again beating up Joe's mother. Joe found a piece of wood and hit his father on the head. The father became a quadriplegic. Barely able to talk, the father said that he forgave his son. Joe and his mother were the only ones to look after the father. Joe was punished every day as he observed the results of his actions. The Defence proposed a sentence which would call for Joe doing things for his father. The Judge said he "had to" send Joe to prison. On the way to court, Joe had helped to lift his father into the car. When we left, his mother and I struggled to put the father in the car. The whole family was being punished. Situation recalled by a community worker. Any Combination of Two of the Above An example of a combined disposition could be six months in custody followed by one year of probation. Review Under the Y.O.A., a custodial disposition is automatdcally reviewed after one year. At a review hearing, the court will assess the youth's progress; unless the Judge is satisfied that the youth has not abided by the terms of the original order, at a review hearing a Judge can only reduce the severity of an original disposition. A youth may also request an earlier review if he thinks there is a reason to shorten or change his sentence. Appeal In addition to the possibility of review, there is a right to appeal an original conviction or disposition to a higher court. 23

27 HOW SHOULD YOU BEGIN? There are a number of roads by which to approach the youth justice system. Your particular road may be determined by the reason for your interest. Perhaps you are concerned with the case of a particular boy or girl. Perhaps you are a member of a group that is interested in observing the action of the Young Offenders Act in your local courts over a period of time. Perhaps you represent a social agency that has a special interest in one aspect of the Y.O.A. in your community. It Is apparent that prevention of youth involvement in further delinquent activities Is highly dependent on early counselling intervention with the fammes before the delinquency patterns become established. The only problem experienced by the counsellor in operating the program was limited clerical support and limited time on her part to respond to more familles. From an Evaluation of a B.C. Youth and Family Counselling Program. Background reading will lay the groundwork. Clear, informative publications are available from regional offices of the Ministry of the Solicitor General of Canada and from Justice for Children. Particularly helpful are the follovving: The Young Offenders Act, 1987: Highlights Solicitor General of Canada 340 Laurier West Ottawa, Ontario KlA OP8 In Trouble with the Law: A Guide to The Young Offenders Act Send $4.00 with your order to: Justice for Children Suite 105, 720 Spadina Ave. Toronto, Ontario M5S 2T9 People, however, are the heart of any law. Half an hour's conversation with an open individual who works daily with the Young Offenders Act can be as useful as a shelf of books, though it is important to remember that each individual working in the system has a particular perspective on it. Try talking with the lawyers who work with young people in your area. Talk with both Crown and Defence Counsels for different angles. Ask them about their pre-court negotiations. Probation Officers can be most informative, as are concerned social workers. Police officers have a unique vantage point as well and are especially helpful if they are involved in a youth bureau. All these people will have different viewpoints on the Y.O.A.; put them together for a fascinating overview. 24

28 Finally, after you have read and heard the opinions of others, trust yourself. Go to court; see for yourself. Under the Young Offenders Act, Youth Court proceedings are open to the public, unless a Judge feels there is good reason to close them. The Act says that the privacy of any young person appearing before the court should be protected. Newspapers are not allowed to report the names of young offenders unless certain exceptional conditions are met. Also the court may exclude individuals such as nosey neighbours from the proceedings. In some courts, the Reporter or Clerk may ask your name and business before a hearing begins; the Judge wants to know who is in the court. Before attending, it may be useful to get in touch vvith the police youth bureau or the Counsel for the Crown and explain your interest, or approach one of the court staff. Once you have assured them that your interest is constructive, you should have no trouble obtaining information about the court proceedings. Sit in court. Sit in different courts. Compare their atmospheres. Compare Judges. Watch the young people who come to court. Visit places of open and secure custody, pre-trial detention facilities, or alternative measures programs. If possible, talk to some of the young people there. You may vvish to try to make an appointment to discuss Youth Court with a local Judge. Though these are busy individuals, they can often make time to see concerned citizens. They may be reluctant to discuss specific cases, but they may discuss the general way the Y.O.A. operates. All of this takes time and a genuine desire to help. You may meet barriers. At first you may find details confusing. Some individuals may be unhelpful. Others may be suspicious of your motives. Please persevere. You have a right to be in court. You have a right to ask questions. Monitoring the court system is in the spirit of the new Canadian Charter of Rights and Freedoms and the Y.O.A. You have a right to examine the way the law works. If you do persevere, you will gain credibility in the eyes of the professionals involved in the system. You will find people who go out of their way to help you. Above all, remember that, if the Young Offenders Act is to be a true expression of our society's intentions, it needs ordinary people to find their way along its roads. 25

29 WHAT TO LOOK FOR We have already said that, after reading background material and talking with various professionals, you must trust your own observations and feelings. You may be disappointed or impressed with the professionalism of some of the people you meet in Youth Court. Undoubtedly you will be fascinated by the way a piece of legislation translates into the courtroom drama and effects the lives of real people. Because the Y.O.A. does effect real people and because the metamorphosis from paper to life is never finished, the need for vigilance never ends. What should you be looking for? Defence Counsel, Crown Counsel, Probation Officer, Police Officer and Social Worker might all suggest different areas of focus. As you sit in the courtroom, you will become sensitive to elements that may require attention. What follows is a list of questions that someone watching the Y.O.A. might ask herself or himself. You will probably think of others. Are the professionals you encounter courteous and helpful? Do they recognize your right to attend hearings? Is the courtroom accessible (easy to find, provided with enough seats, ramps for wheelchairs, etc.) and its atmosphere receptive to the interest and questions of concerned members of the public? During the hearing, are all the people involved, including the young person, treated with courtesy? Did the young person have difficulty in obtaining access to legal services? How heavy a load does Duty Counsel carry? How much time does he spend on an average with each youth? Is it enough time to do the youth's case justice? As far as you know, have the youths you see in court been informed of their rights and responsibilities? As far as they are capable, do they seem to understand the significance of the legal process in which they are involved? How long and where was the young person detained pending disposition? Is the Judge making use of all disposition options when they seem appropriate? Do victims play a role? Are victim impact statements used? Are their needs attended to? Are there programs to allow victims and offenders to meet if that seems appropriate? Are all the Y.O.A. dispositional options available in your community? Are alternative measures available? What about community service orders? If so, do they operate effectively? Is plea bargaining taking place and, if it is, how is it affecting young people? For instance, are police charging a youth with more serious offences knowing they may be bargained down? Has the prosecutor sufficient evidence to prove any of the charges to which the youth has agreed to plead guilty? 26

30 Are there notable differences between the dispositions ordered by different Judges? Do the dispositions seem appropriate? Three 17 year old youths camped at the local campsite, drank what alcohol they had and, in a loud inebriated state, began rummaging through other campers' possessions for more alcohol. In his adjudication, the Judge indicated his anger by stating that his wife refused to camp anymore because they had experienced much the same actions years ago. Ail three boys were sentenced to weekend incarceration and probation though two of them had no previous record. Told by an Alberta Probation Officer. Do you think there are disparities of treatment based on sex, or native or other racial backgrounds? Where are the facilities for secure custody of young offenders in your community, if any? Remember that the Y.O.A. says that young offenders should not be detained in the same place as adult offenders. Do you think the custody conditions in your community are suitable for young offenders? A mother called and asked that I visit her son at the RCMP detachment. He was about to go to a secure custody facility for the first time. When I saw him on the other side of the glass partition he looked scared and soft and as malleable as plasticine. He wrote me a letter from prison saying It wasn't as bad as the Federal Penitentiaries I had described to him. Told by a community worker. In Ontario and Nova Scotia, a two-tier system is in effect in Youth Court. Young people from twelve to fifteen are dealt with in the Family Court system. Sixteen and seventeenyear-olds are dealt with in the adult court system by adult court personnel. The Y.O.A. still applies to both age groups. Do you feel this division creates advantages or disadvantages for either group? Is the right of parents to be informed of their children's legal situation and to be included in the legal process respected? Is it possible for parents to act as a constructive part of the system? Does the court recognize the distinctive backgrounds young people come from? Finally, is the system working in a way that reflects the spirit of the Y.O.A.? Is it helpful for the youths involved? Does it adequately protect society? What could be done to deal with the situation which contributed to the criminal behaviour in the first place? 27

31 WHAT NEXT? You've read, you've talked to professionals, you've been to court. You've visited custody facilities and looked into community disposition programs. You have found your way from one end of the system to the other. Now what? The answer, of course, is up to you. Again, it may depend on why you were interested in the Young Offenders Act in the first place. You are probably a person who feels concern for young people and their development in our society. You probably feel that to take this development for granted by leaving it strictly in the hands of institutions and professionals isn't good enough. The Y.O.A. is meant to be an expression of our desire to deal constructively with young people in trouble. To succeed, it must not be isolated from society at large. Caring people must involve themselves. I first called the Crown Attorney about Susan's case. He advised me to talk to the legal aid lawyer. When I offered to do what I could to support Susan as he prepared to go to court, the legal aid lawyer said it was the first time a member of the community had come forward to go to bat for one of his clients. Later he wrote to me, "The likelihood of a lengthy period of incarceration would, In my opinion, have been greater had It not been for the progress that Susan and her family have made, encouraged by your generously giving of yourself'. Recalled by a community worker. You may work as an individual or a group. You may start as an individual and end by joining a group that is doing good work in relation to the Y.O.A. If you think there are gaps in the operation of the Act in your community, you may want to be part of the concrete solution. Or you may simply want to let someone know. The Ministry of the Solicitor General wants feedback on the Young Offenders Act; they want to hear how the Act works in communities across Canada. The Church Council on Justice and Corrections, the ecumenical body that produced this manual, would like to hear from you, too. We would like to know what you have seen and how you feel about it. There are many ways to be a friend to young people in trouble with the law. Making a phone call and writing a letter are tvvo of them. Victims, too, need friendship and support. 28

32 ADDITIONAL RESOURCES The following two pages are charts which you may find useful to copy and use when courtwatching. The "Data Sheet" is, as its name suggests, for collecting basic data. The sheet tided "Notes from Youth Court" is for keeping a more detailed record of major proceedings. On both sheets are spots for case numbers. We suggest that assigning numbers to the cases you observe may be a convenient identification tool. Also included is a chart showing the youth court process. The Canadian Council on Children and Youth (CCCY), with the assistance of the Young Offenders Directorate of Solicitor General Canada has developed an inventory of Young Offenders Programs which describe over 250 individual services offered by voluntary organizations to young people across the country. This inventory is an exclusively Canadian product. For further information please contact CCCY at: 2211 Riverside Drive Suite 11 Ottawa, Ontario K1H 7X5 (613) The Network for Community Justice and Conflict Resolution has a Directory of Canadian Dispute Resolution Programs ($10.95) many of which are for young people. They have, as well, an Information Kit on Victim Offender Reconciliation Resources ($5.00). For either of these, contact: Network for Community Justice and Conflict Resolution 298 Frederick Street Kitchener, Ontario N2H 2N5 (519) Also available (for $6.00): Learning Disabilities and the Young Offender: Arrest to Disposition from: Learning Disabilities Assocation of Canada 323 Chapel, Suite 200 Ottawa, Ontario K1N 7Z2 (613)

33 Notes from Youth Court Courtwatcher: Place: Date. Case #. Young Person: Sex: Age. Proceedings on this date: Profile of Youth: Details of Proceedings: Noteworthy Impressions: Suggestions for Follow-up: Information from lawyers, police, probation officer, youth, etc.

34 Courtwatcher's Data Sheet Courtwatcher: Place. Date: Judge CASE # I CASE # CASE # CASE # Time Young Person Sex / Age Charge Prosecuter / Crown Defence Court Appointed / Private Proceedings on this date Outcome Suggestions for follow-up

35 i SOLGEN CANADA iii Mill L Briri Young Offender Case Process Diagram Call from Community Investigation (Police) À Call Unwarranted Police Decide Not to Charge Police Charge Alternative Measures No Police Action Or Warning Youth Detained Bail Hearing In Youth Court Youth Sent Home Pending Outcoine Alternative Measures Completed End of Case ADULT COURT - Trial And Possible Sentence In Adult System Transfer Hearing - 14 Year And Over - Serious Indictable Offence Decision Not To Transfer In Detention YOUTH COURT TRIAL NOT GUILTY PLEA Finding Of Guilt Youth Decides not to Participate in Alternative Measures Or Does Not Complete 1 i GUIL'FY PLEA 1 Facts Read i To Court UflP RY SOLICITOR GENERAL CAME JuIL A LIOTHOLJE OLLICITEUR (3 ENE R AL CANA! OTTAWA ;0i;;.t.nbr.) K14 CPi. APPEAL I NOT GUILTY Youth Free To Go Pre-Disposition Report - Medical Report DISPOSITION HEARING Absolute Discharge Fine Up To $1,000 Compensation Or Restitution To Victim I Community I Service Probation Custody Secure Or Open Progress Report REVIEW - Mandatory After 1 Year Custody; Optional In Other Situations 32

36 KE Macdonald, Rae Watching youth in court : M3 an invitation to communityl 1987 involvement under the Young Offenders Act. DATE ISSUED TO KE Macdonald, Rae Watching youth in court : M3 an invitation to community 1987 involvement undet the Young Offenders Act.

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